Relatively few Americans realize how much our laws have revolutionized by scholars and judges. Conservative critics may be aware of how judges have taken over the role of legislators in the name of equality—in some cases assuming control of entire school districts and even raising taxes in (failed) attempts to achieve their goals. Often the stated goal was to end very real unfairness and suffering, though the principles laid down were quite abstract (generally “equality” and “fairness”) hence liable to justify extremism. Moreover, the means used entailed openly violating clear constitutional provisions regarding what kinds of actions members of which branch of government could take. In addition, judges twisted the language of the Constitution, and especially of the Bill of Rights, to transform it from a protection against federal overreaching into a grant of immunity for individuals to insult and offend (and take off their clothes in public) in the name of “expression,” even as they now sue to prevent displays of religious piety.
Our law has been revolutionized in less public ways as well. In particular, the law of private wrongs, or torts, has been changed fundamentally by the drive to increase “fairness” at the cost of certainty and “justice” at the price of law. “Products liability” is a somewhat technical and certainly complex and confusing area of law relating to injuries suffered by people from the use of various “products,” or manufactured goods. If I drive a new car off the lot and the steering wheel ceases functioning as soon as I get it on the freeway, causing me to crash at the first curve, I may have a claim against the car’s manufacturer. This is nothing new. However, in the past it might be difficult to bring suit against the automaker, or to win, because of various legal rules and assumptions limiting whom I could sue (generally, one would have to sue the one from whom one purchased the car) and what kinds of proof I would have to offer.
Responding to manufactured products’ increasing roles in our lives—from the washing machine at home to the production machinery at the factory—the law developed in the early twentieth century to address the more complex relationships among makers, sellers, and users of various products. But these changes, being rooted in custom and preexisting legal norms, were neither swift nor complete enough for legal academics in particular, and they, along with some of the same “Progressive” judges who revolutionized other aspects of American law, created new rules aimed at an entirely new function for this area of law.
No longer was the law regarding products liability to be about wronged persons seeking compensation for suffering inflicted by the negligence or recklessness of others. Now it was to be a system by which courts would decide whether the risks posed by a given product outweighed its “social utility” as determined by various policy determinations. As important, it was now to be a system of social insurance whereby manufacturers would be held strictly liable for injuries caused by their products (whether or not misused by consumers) any time these products were deemed defective in relation to other, perhaps entirely hypothetical, products and designs. Now someone misusing a product, ignoring a clear warning label and simple common sense, might recover millions from the manufacturer on the grounds that his misuse was “foreseeable” and the manufacturer could have adopted a different design that would have made his injuries less likely and/or less severe. Indeed, he might recover millions even if the “better” design might result in more injuries and/or deaths overall.
It is not surprising that lawyers should want a system aimed at producing “fairness” by making it easier for plaintiffs to win in court. One would hope that very few among us would not feel great sympathy for the injured plaintiff, perhaps put in a wheelchair or even killed in a horrible accident. The question is whether fundamental elements of our legal system should be changed so as to make it easier for these people to win in court. As usual, courts were presented with the false choice of changing the law through judicial activism or leaving people to suffer alone. The possibilities of voluntary, local, or even legislative action that would have the advantage of being produced through a more consensual process, consistent with the forms of our constitutional structure, were left out of consideration. Meanwhile, judges imposed new standards by dismissing long-held precedents as unfair and outdated because inconsistent with the latest theories being put forward in law reviews and by elite organizations.
The result was a system predicated on the proposition that all persons injured in dealing with manufactured products have a right to be made whole so long as their use of the product, even if negligent, was “foreseeable” and there was some credible evidence that a differently designed product might have made the injuries less likely or less severe. The demand, especially among the plaintiff’s bar (understandable, given their professional motivations) and the legal academy (understandable, given their ideological goals), was for a system that would in essence create absolute justice. This could not be done, of course, and certainly not through the humble application of existing law.
Thus, the plaintiff’s bar found itself aided by judges and academics in a program of judicial usurpation. Judges imposed, over time, a new regime of strict liability. They were helped, encouraged, and enabled by prominent practicing attorneys and academics, especially through an organization called the American Law Institute. This organization produces “restatements” of various forms of law in the United States. Intended as summaries of the existing law as practiced across America’s various jurisdictions, these restatements sometimes veer into becoming attempts to recreate the law. Particularly in the area of products liability, the Second and Third Restatements of law overtly sought to change the law in accordance with what its drafters considered “the better view,” namely, that manufacturers should be forced into the position of being guarantors of public safety and well-being through policy calculations imposed by judicial fiat.
The problems with this system are relatively well known but entirely dismissed in our legal system. Manufacturers often welcome new strictures as means of keeping competition out of their markets. All too many users of products over time have lost their ability to regulate their own conduct with common sense because they have come to expect an irrational level of safety from the products they misuse. And Americans more generally are forced to pay billions to support a veritable “tort lottery” under which juries act more on emotion and false policy premises than the facts of particular cases; innovation, jobs, and standards of living suffer. State legislatures in particular have pushed back, sometimes wisely, sometimes not (e.g., merely capping the amount a jury might award to any plaintiff, regardless of the injury or degree of fault involved; or carving out exceptions to general rules for particular interests) but the system remains and pressure continues to further expand its logic and reach.
The system has produced a continuing decline in respect for the rule of law, particularly among those who see themselves as guardians of this new system. Where traditional notions deeply tied to law, like fault and causation, once stood, we now have “risk-utility analysis” incorporating public policy considerations formerly left to the legislature and/or the people themselves through their private and social actions. In sum, we have a system predicated on ideology rather than on law.
A single example may suffice to illustrate the extent to which legal academics in particular have imbibed the heady draught of power and now seek to use this new policy-centered “law” to reshape society. One justification for strict products liability is that the product found “defective” fails to meet consumer expectations. And it is true that one does not expect, for example, a lawnmower to simply explode on starting. But generally the law speaks in terms of “reasonable” or “rational” expectations, and then only where something or someone has given rise to such expectations. Sadly, in recent decades this has led to misapplication of notions like fraud (“your advertisement said it was a rugged tire, so I had a right to expect I could drive over boulders without worrying about it!”).
Professor Douglas Kysar some dozen years ago in a Columbia Law Review article discussed at some length in a standard products liability textbook (edited by two codrafters of the Third Restatement) sought to push misuse of consumer expectations a bit further. Kysar’s argument rests on the view that courts have no business “imposing” rationality upon consumer expectations. Rather, Kysar argues, juries should be told to determine “as a factual matter, what level of safety the ordinary consumer does expect.” Putting to one side the obvious problem with this “standard,” namely that it would impose irrational, unworkable, and even dangerous liability rules for product performance; we should consider the direction in which Kysar sees his analysis trending. In a clear attempt to sell his idea as socially “progressive,” Kysar provides a hypothetical: say there are two airbag designs available. Each will save three thousand lives over a certain number of miles driven. But where the first design will actually cause one hundred deaths, the second one will “kill” only ninety people. Further assume that of the ninety persons killed by the second airbag, most are female (we can assume this is so because the second airbag “kills” lighter people and women on average weigh less than men). The first airbag “kills” equal numbers of males and females. Now assume that a woman driving a car with the second airbag is rear-ended at slow speed and is killed. According to Kysar, it is possible that a jury would find that the auto manufacturer should be held liable for installing the second, “female killing” airbag. Why? Because members of the jury could decide that most people in that jurisdiction would prefer that airbags “kill” equally across gender lines. So, even though the second airbag is safer overall, consumer expectations could dictate that a “fairer” airbag be installed, lest the automaker pay out millions in damages.
Make sense? Of course not. What we have here is a kind of “affirmative action” in the courtroom. People’s specifically political assumptions about gender equality are to be used to determine financial liability for companies seeking to save as many lives as possible. Still, the result would be entirely in keeping with how the law is currently applied. Municipalities as well as companies are sued and forced to change their policies (for example, surrendering their requirement that all job applicants have high school diplomas) on the grounds that they have a “disparate impact” along racial lines.
Courts already are demanding in the realm of products liability that products justify themselves on grounds of “social utility,” an inherently political criterion. Why not, then, extend the notion of utility to include gender, race, carbon emissions, or any other “progressive” policy of the moment? Why not, indeed. So long as law is seen as a way of achieving grand aims of social good rather than maintenance of social peace, there is no logical end to how far politicization can go. And there will be no end to how much law can be subordinated to shifting desires of the moment, until eventually the people no longer are ruled by laws of any kind but only by judges and those who sell them particular ideological nostrums.
Bruce P. Frohnen is Professor of Law at The Ohio Northern University Pettit College of Law.
 James A Henderson, Jr., and Aaron D. Twerski, Products Liability: Problems and Process, 7th ed. (Austin, TX: Wolters Kluwer, 2011), 270‒71.